Up until recently, the main way to meet the FAA requirements for using a drone for commercial purposes (or, in the latest parlance from the faa, “non-model” UAS flying) was to go through the agency’s cumbersome and lengthy 333-exemption process. So that had become the customary process for a newsroom or individual who wanted to take pictures or video, and use them for their station or business, or get paid for them. And even with 333 exemptions, the conditions and limitations that applied put quite a stranglehold on the nature, flexibility, and locations of drone use.
In June, a long-anticipated new rule for drone operations was issued by the FAA. It is to go into effect August 29, 2016.
This Part 107, “Operation and Certification of Small Unmanned Aircraft Systems” will be the rule ahead, but don’t gloss over its detail, requirements and in some areas, complexity.
The final document of release of the rule (624 pages) is here: https://www.faa.gov/uas/media/RIN_2120-AJ60_Clean_Signed.pdf
A summary of its major provisions is here: https://www.faa.gov/uas/media/Part_107_Summary.pdf
FAQs from the FAA on UAS operations (about 60 questions/answers), including on Part 107 operations, 333 operations, and the relationship between the two, are here: https://www.faa.gov/uas/faqs/
Many of its elements and requirements are not totally clear, and will be subject to interpretation and clarifications over time. Many of the requirements will need to have certain other procedures, website testing, remote pilot operator certification, etc., that may, or may not, be fully established and available at the time the rule goes into effect. Embedded in the rule are matters or references in this rule to other Federal Aviation Regulations, and without knowing the interconnects and the text of the rule references, it may be difficult to grasp some of the nuanced requirements (and limitations or enforcement potential). So, in short, this will be the rule under which media wishing to use drones for their newsgathering will be able to operate (without a 333 exemption). And this rule does ease certain requirements that have been incorporated into 333 operations requirements that have been granted up to now . Among the “easier” things:
- There doesn’t seem to be any COA requirement for ops within the rule’s limitations.
- The whole matter of limitations in flying over private property is absent from this Part 107.
- There doesn’t seem to be any advance notification requirement for ops within the rules limitations.
- The holder of the “remote pilot certificate” envisioned under this rule can operate on his/her own, without a visual observer (though one may be used).
- No monthly reporting requirements to the FAA regarding fight operations seem to be present.
There is a requirement for a new kind of pilot certificate: a “remote pilot certificate”, which will be granted based on testing of various areas of aeronautical knowledge, including weather, air traffic control procedures, aviation chart reading, and airspace knowledge, particularly on classes of airspace and limitations related to UAS operations in them. There are a number of other subject areas that also will be tested, and the testing must be done at an FAA testing center, of which there are to be several hundred around the U.S. The holder of a traditional FAA pilot certificate can be a UAS pilot, but also must take an online course on UAS operations (and get validation for taking that course), and must meet flight and pilot licensing currency requirements in the type aircraft for which the pilot is certified.
In one other seeming bit of flexibility (but perhaps not, when you look deeper at the rule’s working) the “remote pilot in command” may be present and oversee the flight operation while the aircraft is actually controlled by another person who, it seems, does not have to hold any pilot certificate. However, this is only applicable, per the rule when: “That person is under the direct supervision of a remote pilot in command and the remote pilot in command has the ability to immediately take direct control of the flight of the small unmanned aircraft.” So, for instance, in the “need for interpretation department”, what constitutes “immediately take direct control”? Is that a dual control flight system, where the command control box can switch, or unswitch, control to the other? These are the kinds of nuances that are easy to miss with a quick reading of the rule.
Among the challenges still are the limitations on flying directly over people, and the airspace limitations (no flying UAS in Class B, C, D, or lateral limits of E, airspace). Either waivers or specific permission can be granted locally for flight into such airspace. Methods for this are still being explained, but this will create some limits in key areas near any significant city. So, while much of this seems to offer more flexibility, it nonetheless contains nuances and substantial limitations that will create some challenges to those wishing to rely on this for news gathering.
The FAA states this in its Part 107 official release document (on and around page 542, where, in this area, there is more about the First Amendment and speech ramifications of this rule):
“Similarly, this rule is directed at aviation safety and does not directly regulate reporting or other expressive activity. Anyone seeking to use a small UAS for photography or videography in a manner not permitted under this rule is free to utilize another method of photography or videography by, for example, using a manned aircraft, filming from a tall structure or landmark, filming from the ground, or using specialized equipment. Thus, the provisions of this rule meet the constitutional standard for an incidental restriction on speech, and enforcement would not implicate the First Amendment.
d. Time, Place, Manner Restrictions on Speech.
Finally, even if we were to assume that this rule directly regulates expressive activity in a public forum, the provisions of this rule would still be consistent with the First Amendment as a permissible time, place, or manner restriction on speech. A constitutionally permitted time, place, or manner restriction on speech occurs when the regulation is content-neutral, narrowly tailored to serve a significant government interest, and leaves open ample alternative channels of communication.”
In addition, the issue of privacy is always at the forefront, and the National Telecommunications and Information Agency completed an 8 month working group effort on this topic (“best practices” on drone use privacy, accountability and transparency) in May. Their final published guidelines does contain a broad First Amendment carve-out for media, but awareness of it might be useful to UAS commercial operators: https://www.ntia.doc.gov/files/ntia/publications/best_practices_for_uas_privacy_transparency_and_accountability_0.pdf
Getting fully set up to operate under Part 107 may take some weeks or months after the startup date for the reg. Some elements of the 333 grant conditions differ from those of Part 107, so if you have both, you may be able to pick and choose which is best for a given mission, but you must then operate a given flight under one or the other. In general, it appears overall that Part 107 offers a simpler system of operations. So, how long it will take for someone to fully meet the operational requirements of Part 107 is yet to be seen. In the meantime, the FAA has put up online resources with information toward remote pilot certification, providing guidance on pilot standards and requirements, the aeronautical knowledge being tested, and how the process is to work, including direction toward what will be online sign-ups for testing, course-work, and applications, for both non-certificated pilot and for presently-certificated pilots, for individuals wishing to get a remote pilot certificate. It’s all up FAA UAS website, with a good starting point being this page: https://www.faa.gov/uas/getting_started/fly_for_work_business/becoming_a_pilot/
August 4, 2016. Updates: August 9, 2016
A Presidentially-driven process to create “best practices” related to drone use as it relates to “privacy, accountability, and transparency issues” has, after 15 months, come to a conclusion.
A “consensus document” evolved from a memorandum in February 2015 from President Obama that tasked the National Telecommunications and Information Administration (NTIA), an agency of the U.S. Dept. of Commerce, to look into Unmanned Aircraft Systems (UAS) and “the privacy, civil rights, and civil liberties concerns these systems may raise.”
Since that time the NTIA invited public comments on the matter, and then initiated a series of meetings, six in total, where “stakeholders” expressed views on the topics, created a number of draft documents, and critiqued, analyzed and amended those documents. Ultimately, a “working group” of the stakeholders, after a cancelled meeting in April, put forth a final draft document for consideration at a meeting on May 18, 2016. It was discussed and amended further, and then declared by the NTIA organizers as a completed “consensus” document, despite the fact that at nearly a dozen of the attendees at the meeting said they could not support the document as it had been concluded. No vote was taken. There did seem to be true agreement that no further meetings would be useful in coming to any altered conclusion or changes regarding the final drafted/amended document that evolved on May 18.
The “Voluntary Best Practices for UAS Privacy, Transparency, and Accountability” document is about six pages, plus an appendix, and includes five main topics: Introduction, Applicability, Definitions, Voluntary Best Practices, and Best Practices for Newsgatherers and New Reporting Organizations. They key points in the “Voluntary Best Practices” section are elaborated on under the banners of five guidelines:
1. Inform Others of Your Use of UAS
2. Show Care When Operating UAS of Collecting and Storing Covered Data
3. Limit the Use and Sharing of Covered Data
4. Secure Covered Data
5. Monitor and Comply with Evolving Federal, State and Local UAS Laws
The Newsgatherers portion basically says that U.S. law and the First Amendment to the Constitution protect their work, and thus these best practices do not apply, but instead they should operate “under the ethics rules and standards of their organization…”
It was stressed that this document is voluntary in nature, and not intended to be regulatory in any way.
The groups that participated in this NTIA effort included organizations as diverse as drone manufacturers and drone operators’ advocacy groups, privacy advocacy groups including the American Civil Liberties Union (ACLU), and media organizations, including the News Media Coalition representing nearly two dozen major media entities and organizations, among them The New York Times, NBC, The Associated Press, and others.
Details of this effort, summaries of meetings, documents drafted, and the final document and statement from an NTIA official are at this NTIA website: https://www.ntia.doc.gov/other-publication/2016/multistakeholder-process-unmanned-aircraft-systems .
The NTIA has encouraged anyone with further views on the topic, either confirming, commenting, or in opposition, to send them in to the NTIA, and they will be linked on this NTIA website, as well.
Berl Brechner, NewsDrones ®, May 19, 2015
A Learning Lesson for All:
A camera-flying UAS (drone) crashed into the snow close behind a skier on a slalom run at a World Cup competition event in Italy on Tuesday 12/22. The aircraft was being operated by InFront Sports and Media, a Europe-based company involved in sports marketing and production services. They were operating with permission, it is reported, from the International Ski Federation (FIS), the event organizer.
The UAS involved appears to be an eight engine aircraft, with engine/prop pairs on four arms. The event was aired in the U.S. by NBC Universal Sports.
After the crash, InFront Sports posted this message on its website:
During the slalom race of the FIS Alpine Ski World Cup in Madonna di Campiglio/Italy in the evening of 22 December 2015, an unmanned drone carrying a broadcast camera crashed to the snow during the second run of Austrian ski racer Marcel Hirscher. We are extremely relieved that apparently no one was hurt. At the same time, this incident is being taken very serious and the circumstances leading to it are currently being examined. An update will be provided as soon as secured information is available.
An early report indicated FIS would ban drones from future event coverage, but a later statement from FIS seemed to back-away from that. From the FIS website:
While FIS and its partners aim to use new technology to enhance the fan experience, an accident such as the drone crash cannot happen again. Even if – unlike in Austria, Switzerland and other countries – drones are authorized to fly over a crowd during events in Italy, FIS and the host broadcaster will work together with all the involved parties to see what occurred during the crash and ensure that this will not happen again.
So, for all of you video news/sports/production operators, let this serve as a cautionary tale.
Here’s a BBC report, with video, on the incident:
Update:December 18, 2015:
The FAA did indeed issue new regulations for drone (UAS) registration on Monday Dec. 14. It is a rushed “interim final rule”, issued effective immediately, without advance notice/comment, but with a 30 day comment period starting after issuance. It adopts some of the “task force” work done in November. It ignores other elements of that task force’s suggestions.
A page on the FAA website (https://www.faa.gov/uas/registration/) sets forth the proceeding, and has links to a page of FAQs on the rules, and includes a 211 page document that has a summary, detailed explanation, and the actual regulation, Part 48 of the Federal Aviation Regulations, and other changed regulations.
UAS registration online capability (at the above FAA page) is to go active on Dec.21. In short, for non-commercial users of drones (within a weight category of from .55 pound – about 8 oz. – to 55 pounds) , the rule specifies:
- Only individual or recreational users who are U.S. citizens and at least 13 years old may register their sUAS using the web-based registration process. (A parent must register for users under age 13.) All other operators, including business entities, must continue registering through the paper-based registration process set forth in part 47.
- Owners who purchased the sUAS prior to December 21, 2015 will have 60 days to register.
- Owners who purchase a sUAS on or after December 21, 2015 must register the sUAS prior to operating in the National Airspace System (NAS).
- Online registration requires submission of the owners name, physical address, mailing address, and email address. The make, model, and serial number does not necessarily have to be provided.
- Registration will cost $5 per owner, but is free until January 21, 2015. This grace period is calculated to encourage speedy registration of sUAS.
- Registrations are good for 3-year cycles.
- A number will be given to the owner/registrant, and that unique number must be marked on each sUAS operated by that owner in a readily accessible location.
- Failure to register a sUAS may result in civil and/or criminal penalties. On the civil side, an operator could face up to $27,500 in penalties. Criminal penalties range from fines of up to $250,000 to imprisonment for up to three years.
- Drones that weigh 250 grams or less, including the aircraft, payload, and any other associated weight, are exempt from registration.
For commercial users, there is little impact from these new rules. Commercial users such as those who have filed for 333 exemptions to operate, and who have received, or may expect to receive FAA instructions to register their UAS, still must register their UAS aircraft under the Part 47 (paper) registration process. However, the FAA says that its web-based registration process may be available to commercial user registration after March 31, 2016.
There have been a number of questions raised about the FAA authority, process, enforceability and technicalities regarding this registration requirement. It may change. It may be subject to a lawsuit. So how it plays out should be followed closely.
Jonathan Rupprecht, an aviation attorney who handles a substantial amount of UAS work, finds a bunch of questionable regulatory practices and issues in this new regulation, and his analysis is here:
The Academy of Model Aeronautics is opposed to portions of the process and recommends delaying registration. That information is here:
Berl Brechner, December 18, 2015
Prior report, from 10/29/14…..
The Department of Transportation announced on Monday 10/19 that it intended to seek to have UASs, both newly sold and existing, some or all, go through a Federal registration process. They might have to be registered at the point of sale, or perhaps before use.
Transportation Secretary Anthony Foxx announced the proposal at a press conference, flanked by FAA Administrator Michael Huerta, and representatives from several organizations and businesses involved in aviation and UAS operations. Foxx had hinted of the plan in an interview with CBS news the Friday before the announcement, but there otherwise had been no advance notice.
The DOT announcement can be found here:
Answers to media questions at the conference were vague. Enforcement procedures and penalties for non-registration are not set. Whether the registration would apply to all drones, or some based on performance, weight, or technology is not known. What the new process for registering UAS’s will be wasn’t known, but it would be “streamlined”, and likely online. And the timeline for having this in place is not set, through Foxx indicated there was interest in having this process in place “before Christmas.”
Additionally, said Foxx, registration would be a good way to get to drone operators to “educate” them about drone safety and airspace use. What the education would be, whether it would be voluntary or required, and who and how it would be provided were not known.
A “task force” of government and industry representatives is being formed, and is scheduled to report back its recommendations on drone registration procedures and policies by November 20.
On Tuesday morning, Oct. 20, official notice of the proposal went up on the Federal Aviation Administrations regulatory docket, and is posted here:
This site allows public comment. An FAA representative said on 10/21 that they’d like comments within 15 days, so the task force can assess them before it makes its recommendations. This date clarification was posted by the FAA on 10/22: “To assist the task force in developing its recommendations, the Department requests that comments in response to the request for information be submitted to docket FAA-2015-4378 at www.regulations.gov, by November 6, 2015. The docket will remain open after this time and the Department will consider all comments received in developing a registration process.”
What was not clear, also, is how this affects commercial users, and particularly those granted Section 333 exemptions to operate their UAS commercially. 333 exemption holders are required to register their drones in the same fashion as aircraft registration, and get an “N-number” that must be applied to the aircraft. At this time, there does not appear to be any change to that requirement, or the method of registration.
UPDATE: The FAA published the list of drone registration task force members on 10/29. It is here: https://www.faa.gov/news/updates/?newsId=84125
This report shows the participants to be:
Nancy Egan – 3D Robotics
Richard Hanson – Academy of Model Aeronautics
George Novak – Aerospace Industries Association
Chuck Hogeman and Randy Kenagy – Air Line Pilots Association
Jim Coon – Aircraft Owners and Pilots Association
Sean Cassidy – Amazon Prime Air
Ben Gielow–Amazon Retail
Justin Towles – American Association of Airport Executives
Brian Wynne – Association of Unmanned Vehicle Systems International
Parker Brugge – Best Buy
Douglas Johnson – Consumer Electronics Association
Brendan Schulman – DJI
Paul Feldman – General Aviation Manufacturers Association
Dave Vos – GoogleX (Co-Chair)
Tony Bates – GoPro
Matt Zuccaro – Helicopter Association International
Mike Fergus – International Association of Chiefs of Police
John Perry – Management Association for Private Photogrammetric Surveyors
Brandon Declet – Measure
Randall Burdett – National Association of State Aviation Officials
Sarah Wolf – National Business Aviation Association
Baptiste Tripard – Parrot
Tyler Collins – PrecisionHawk
Gregory McNeal – Small UAV Coalition
Thomas Head – Walmart
Along with the FAA and DOT, the following federal agencies will provide expert support to the Task Force: Department of Commerce, Department of Defense, Department of Homeland Security, Department of the Interior, Office of Management and Budget, National Aeronautics and Space Administration and the Department of State.
The task force is scheduled to meet Nov. 3-5
Berl Brechner, 10/21/15, updated 10/29/15
The FAA has just filed what appears to be the first significant enforcement action since the FAA started issuing commercial drone flight authorizations based on grants of exemptions of Federal Aviation Regulations (pursuant to section 333 of the FAA Reform Act of 2012).
The company subject to the action is SkyPan International. A company with that name was granted a 333 exemption for real estate photography in April of 2015. The company operates a website which is here: http://www.skypanintl.com/ . The FAA’s release on this action claims that SkyPan was flying over New York City and Chicago since 2012, and had no Certificate of Authorization or Waiver (COA) to do so, and is being cited for 65 such unauthorized flights. Subsequent to the FAA charges, SkyPan issued a response, which is on its website.
Sidebar: It’s interesting to look at this in relation to FAA Notice N 8900.313, issued this past August 4, which provides FAA Flight Standards divisions, Flight Standards District Offices, and aviation safety inspectors with the “FAA approved” protocol for how drone operators should be “properly educated” if they violate a regulation within the NAS. Per the notice, an FAA representative is to attempt to call an operator on the phone, and “conduct an inquiry appropriate to the circumstances.” Beyond that the inspector will review with the operator the appropriate Code of Federal Regulations (CFR) provisions and offer counsel on how to operate the UAV within the regs. If the inspector deems necessary, he/she will send out an administrative informational letter that includes website addresses to FAA UAS guidance and relevant CFR provisions. However, if the operator is “uncooperative, intentionally noncompliant, or the operation poses medium to high potential or actual endangerment to the NAS,” he or she may proceed with an enforcement action as outlined in the Compliance and Enforcement Bulletin No. 2014-2, and a legal or administrative proceeding can be initiated. Of course, the operator may seek legal advice and guidance anywhere along this path, and likely should. If NewsDrones can help you sort through your needs and procedures, please contact us.
Here’s FAA Notice N 8900.313, if you want to see the full detail: https://www.faa.gov/documentLibrary/media/Notice/N_8900.313.pdf
And here’s a reprint of the release issued Oct. 6 concerning the latest enforcement action.
Press Release – FAA Proposes $1.9 Million Civil Penalty Against SkyPan International for Allegedly Unauthorized Unmanned Aircraft
For Immediate Release
October 6, 2015
Contact: Les Dorr or Alison Duquette
Phone: (202) 267-3883; email: email@example.com
NEW YORK – The U.S. Department of Transportation’s Federal Aviation Administration (FAA) today announces the largest civil penalty the FAA has proposed against a UAS operator for endangering the safety of our airspace.
The FAA proposes a $1.9 million civil penalty against SkyPan International, Inc. of Chicago. Between March 21, 2012, and Dec. 15, 2014, SkyPan conducted 65 unauthorized operations in some of our most congested airspace and heavily populated cities, violating airspace regulations and various operating rules, the FAA alleges. These operations were illegal and not without risk.
The FAA alleges that the company conducted 65 unauthorized commercial UAS flights over various locations in New York City and Chicago between March 21, 2012 and Dec. 15, 2014. The flights involved aerial photography. Of those, 43 flew in the highly restricted New York Class B airspace.
“Flying unmanned aircraft in violation of the Federal Aviation Regulations is illegal and can be dangerous,” said FAA Administrator Michael Huerta. “We have the safest airspace in the world, and everyone who uses it must understand and observe our comprehensive set of rules and regulations.”
SkyPan operated the 43 flights in the New York Class B airspace without receiving an air traffic control clearance to access it, the FAA alleges. Additionally, the agency alleges the aircraft was not equipped with a two-way radio, transponder, and altitude-reporting equipment.
The FAA further alleges that on all 65 flights, the aircraft lacked an airworthiness certificate and effective registration, and SkyPan did not have a Certificate of Waiver or Authorization for the operations.
SkyPan operated the aircraft in a careless or reckless manner so as to endanger lives or property, the FAA alleges.
SkyPan has 30 days after receiving the FAA’s enforcement letter to respond to the agency.
(end of release)
Updated Dec. 29, 2015
Privacy Issues a Key Topic for Discussions
A Washington agency of the U.S. Dept. of Commerce is now more immersing itself in its exploration of the commercial drone business. Back in February, the National Telecommunications and Information Administration (NTIA) was tasked by a memorandum from President Obama to look into certain aspects of Unmanned Aircraft Systems, or drones.
The memo includes, in part: “As UAS are integrated into the NAS, the Federal Government will take steps to ensure that the integration takes into account not only our economic competitiveness and public safety, but also the privacy, civil rights, and civil liberties concerns these systems may raise.”
So far, the NTIA has taken an initial round of public comment (50 individuals’ or groups’ comments can be found on the NTIA website), and now it is scheduling meetings for “stakeholders”, for further discussion and commentary. These meetings are in line with, as the memorandum explains in its best government-speak, an “open, transparent, consensus-driven process to develop best practices for privacy, accountability, and transparency issues” regarding commercial and private drone use in the national airspace system The meetings schedule is:
- August 3, 2015, 1:00-5:00 p.m.
- September 24, 2015, 1:00-5:00 p.m.
- October 21, 2015, 1:00-5:00 p.m.
- November 20, 2015, 1:00-5:00 p.m.,
All meetings to take place at : Boardroom at the American Institute of Architects, 1735 New York Avenue NW, Washington, DC 20006
The NTIA’s announcement on this has more detail, and also says there will be interactive webcasts for each of the meetings. The release on all this from NTIA is here:
A blog announcement from NTIA on the meetings explains: “ We are looking forward to applying our experiences promoting multistakeholder policymaking in the Internet governance and privacy arenas to this effort to craft best practices for privacy, transparency, and accountability regarding UAS. As we have in other multistakeholder forums, NTIA will act as a neutral convener, with stakeholders driving the process and determining the content of the best practices. “
These topic area were more fully detailed as areas of interest in the NTIA’s initial request for comments in March. Covington and Burling, a Washington law firm, summarized the areas in its “Inside Privacy” newsletter:
- Privacy: The NTIA notes that UAS “pose privacy challenges regarding collection, use, retention, and dissemination of data collected by UAS,” and encourages stakeholders to “identify safeguards that address the privacy challenges posed by commercial and private UAS use.” The NTIA asks whether certain commercial uses of UAS raise heightened privacy concerns compared to others, and whether specific best practices “would mitigate the most pressing privacy challenges while supporting innovation.”
- Transparency: NTIA states that transparent operation of UAS “can enhance privacy and bolster other values,” and requests commenters to “identify mechanisms, such as standardized physical markings or electronic identifiers, which could promote transparent UAS operation.” The NTIA also asks how UAS operators can inform the public about operations that “significantly impact privacy, anti-nuisance, or safety interests.”
- Accountability: The NTIA seeks comment on “mechanisms that can promote accountable UAS operation,” such as audits and assessments. The NTIA also asks what “rules regarding conduct, training, operation, data handling, and oversight” would promote accountability for commercial drone operations.
- Structure: The NTIA seeks comment about how to structure the multi-stakeholder engagement process, and whether existing best practices could serve as models for the participants’ work.
Presumably, the NTIA public meetings will continue to explore these topic areas.
Posted July 17, 2015
Does a Memorandum by the Federal Aviation Administration on May 5 represent a flip-flop on what had been understood to be commercial prohibitions to drone use, a back-door attack on the First Amendment, or reasonable policy in line with traditional journalistic practice?
The Memorandum, signed off by the FAA’s Mark W. Bury, Assistant Chief Counsel for Regulations, is directed to the FAA’s Unmanned Aircraft Integration Office, and seeks to set policy for use of drones for “newsgathering.” The memo poses, and answers, three questions:
1. Can members of the media use Unmanned Aircraft Systems (UAS) for newsgathering?
2. Can media use pictures, video, or other information collected by a person using an unmanned aircraft?
3. Does a person who sells images collected by his/her unmanned aircraft need authorization for that flight operation?
It approaches the questions with the assumption that neither the media companies nor any of the drone owners presently hold any of the limited authorizations or exemptions from the FAA that can authorize certain commercial drone uses. The memo uses six lengthy paragraphs to answer these questions. The short answers are:
1. No, media cannot routinely use unmanned aircraft for newsgathering, unless they have specific authorization from the FAA.
2. Yes, a communications medium can use pictures, so long as they get them “from a person not affiliated with that media outlet.” And, additionally, the FAA says media may pay for such pictures.
3. Depends. If the person operating the drone gets a picture worth using by chance, while operating their drone under guidelines that permit drone uses for hobby or recreational purposes, then a use by media is OK. If they’ve intentionally set off to obtain a picture or video to sell or distribute, then they’ve violated the prohibition against unauthorized commercial operations of drones.
So, here are three scenarios:
A house on Main Street is consumed in flame. Sarah, who flies a drone from which she’s taken some pretty pictures and posted them on Instagram, happens to have her drone up in the air at the time. She takes video of the burning house, firefighters streaming water as they fight the conflagration. She sees what she’s got, and then decides to offer it to WZYX-TV. They pay her $100 for the video. It would seem that this all fits in with the May 5 FAA memo as an acceptable sale of video from a drone.
Joe, who also happens to have a small drone with a camera, hears fire trucks responding to a location around the corner. Thinking this might be an opportunity to help him pay for his drone, he rushes out of his house with his drone, sees the house in flames, launches his machine and gets some video. He sells the video to WZYX-TV. In this case, because he has intentionally done a newsgathering flight, he would not have complied with the guidance in this memo, and thus would be in violation of FAA rules.
And finally, Robert, who also owns a drone, happens by the house aflame as he is headed for work. He’s an account executive at WZYX. He pulls his drone from the trunk of his car, launches it, and shoots video. When he gets to work he tells the station’s News Director what he’s got, a news editor pulls the video off Robert’s drone’s mini-SD card, and the station puts it on the noon newscast. Robert isn’t paid. But because Robert is “affiliated with that media outlet”, it appears the memo says his pictures or video should not have been used, and he has violated FAA rules.
Of particular interest is that this interpretive Memorandum seems to go out of its way make clear that it is the drone owner/operator who might be sanctioned, not the media company. Not regulated by the FAA, the memo says, is “whether a third-party not involved in the operation of an aircraft…. can receive pictures, videos, or other information.” Even more definitively, the Memo continues, “A media entity that does not have operational control of the UAS and is otherwise not involved in its operation falls outside the FAA’s oversight. Whether a media entity pays for or obtains the pictures, videos, or other information for free would not affect this analysis.”
So, in short, as explained in this Memo, if an individual intends to shoot pictures or videos with a UAS to be sold to media outlet, that would “be in furtherance of that person’s business…. would fail the ‘hobby or recreation’ test of section 336(a) and would need to be authorized by the FAA.” And if you’re a media entity, gathering news by drone “would be in furtherance of that entity’s business, and would fail the ‘hobby or recreation test’….” So FAA authorization would be required.
And how is memo being viewed, and what will its impact be? Well, it certainly seems to be a flip-flop. Prior to this, most interpretations were that unless a drone operator held a specific exemption or authorization, any commercial activity occurring with drones seemed to be forbidden, and certainly sale of a picture or video from a drone, no matter the circumstance under which it was obtained, would be commercial. Now a new door for video and image sales appears to have opened. One commercial drone operator who worked for more than a year to get his FAA exemption, expressed a degree of shock that now a recreational/hobbyist drone operator, not subject to the stringent operational limits, guidelines, safety procedures, and oversight that he is, may be out selling pictures and video.
And why do some see this as a back door attack on the First Amendment? A news event is happening, and a hobbyist happens to get drone video, and can sell it. But a media company cannot professionally cover that story with its own drone, or with a contract drone operator? Why can a hobbyist by chance shoot news, but a news organization cannot? Is media now being treated discriminatorily, precluded by FAA fiat from doing the job it wishes to do? And where did the FAA get that authority?
And finally, since media companies have a long history of using and buying images from people who happen to get footage of newsworthy events, what’s different here? Lots, since, “intent” has never before been a measure of whether that use is acceptable or not. Also, while the newspaper or TV station might not have been there to get the shot, and gladly will use the picture or video from a bystander, the media outlet has never been told, before this, that it may not shoot such video itself.
This seven paragraph memo offering new interpretations regarding media use of drone-gathered imagery offers the possibility that there will be host of new drone-video ambulance chasers (who will say they just happened to be at the scene), and certainly seems to free up media entities to grab any drone footage from any source, and use it with impunity. For those trying to create professionalism, ethics, safety, and equity in the use of drones for newsgathering, there is concern that this memo, rather than settle issues, may create a new round of confusion and harm.
Berl Brechner, May 20, 2015
NewsDrones is a new company, intended to educate you and consult with you and your organization, on the hows, whys, procedures, equipment, insurance, and legalities of getting your camera into the air, capturing the video scenes you want, and delivering them back to your studios, newsrooms, or online editors.
Here’s why you should be thinking about, and planning for, using UAVs (unmanned aerial vehicles) at your news organization, and working with NewsDrones:
- Effective, compelling video
- Quality HD imaging
- Much less expensive than helicopters
- Expected to be able to be done by your in-house staff (with training and certifications)
- We’ll help you meet all regulations and comply with any operating limitations
- You’re in the driver’s seat…. Your equipment and people. We just help you get there
Right now, as you probably know, newsgathering of breaking events by small Unmanned Aerial Systems (UAS, or more commonly, drones) is all but an impossibility to accomplish, due to stringent limitations, qualifications, and conditions set by the Federal Aviation Administration for non-recreational or non-hobbyist uses of drones. Integrating unmanned aircraft into the busy U.S. skies has proven to be a formidable challenge for the FAA, which is responsible for air transportation safety. A process for commercial drone operation, commonly referred to as the 333 exemption process, had been the norm during 2014 through mid-2016. However, effective with the introduction of a new UAS operation rule (Part 107) by the FAA in June, 2016, that will become the standard for rules, requirements and limitations for anyone wishing to fly UAS in a “non-model” role. Part 107 is a topic of a post elsewhere in these pages.
IT’S ALL IN A STATE OF CHANGE.
NewsDrones is staying tuned in to what’s happening at the FAA, and FCC, and other agencies, watching an ever-changing regulatory landscape, and indeed is participating in shaping FAA policy on such matters to try to give news director and news photographers a voice in the process. Berl Brechner, principal of NewsDrones, has been a big-four network-affiliated TV stations owner, video production writer/producer, a newspaper/magazine/video journalist, and is a commercial pilot with instrument and multiengine ratings and thousands of hours of flight time. He is uniquely qualified to interpret the rules and procedures that will go along with drone operations, find the resources that will help, and understand the needs and interests of the TV or Cable news operations, or website news services, that may wish to use them. He speaks your language. And he is assembling information and advisors that will assist towards getting your pictures from drones as the rules change and the opportunities expand.
NewsDrones wants your opinion on such matters, and is presently surveying newsroom needs. Contact me to learn more, to get answers to questions now, to give me your input on our questionnaire, or just to chat. No charge. Let’s see how NewsDrones, in the months ahead, might work with your organization or news team to get your drone up and available to meet your specific local newsgathering needs, at a cost reflective of your needs.
Don’t get left behind when this door opens. For more information and further background, explore this website, or contact me.
Thanks, and we look forward to working on this exciting new way to enhance your news, and your service to your communities.
NewsDrones Company, Berl Brechner
(updated Aug. 9, 2016)
We want to be helpful in educating you about the myriad possibilities of UAV usage in newsgathering, in helping you meet your needs, and in guiding you along what may be a new and complex path. We need your thoughts, too. You can help us help you by filling out this form. We welcome all your feedback and comments. Thanks!